Time for a ‘Right to Vote’ Constitutional Amendment

March 5, 2013

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(AP Photo/Damian Dovarganes)

President Obama earned one of the loudest rounds of applause during his fourth State of the Union address when he declared, “We must all do our part to make sure our God-given rights are protected here at home. That includes one of the most fundamental rights of a democracy: the right to vote.” He then appointed a commission to “fix” the problem of long lines at the polls. That might be a sufficient response to the one specific concern the president has chosen to focus on. But it’s an insufficient response to the structural crisis of American democracy. While Obama assures us that our right to vote is “God-given” and “fundamental,” that right is neither defined in nor guaranteed by the Constitution.

“We talk about a right to vote, and I think the vast majority of Americans believe that right exists. But the evidence of election after election, in state after state, is that the right is not protected; it’s under steady assault,” says John Bonifaz, the legal director of the national nonprofit Voter Action. Pulitzer Prize–winning historian Eric Foner (a Nation editorial board member) puts it another way, arguing that American history is “not just a story of expanding the right to vote. It has expanded and contracted.”

The current US electoral process is not what democracy looks like. At least not if we go by the standard embraced by the vast majority of democratic nations. As Representative Keith Ellison notes, “Democracies around the world—old democracies, new democracies—have in their constitutions an affirmative right to vote. It’s remarkable to me that the United States does not have that guarantee in our Constitution. I think a lot of our problems come back to this issue.”

So Ellison, a Minnesota Democrat who co-chairs the Congressional Progressive Caucus, is doing something about it. With Representative Mark Pocan, a newly elected Wisconsin Democrat, he is preparing to introduce a constitutional amendment guaranteeing the right to vote. This is not the first time such an amendment has been proposed, and there will naturally be skepticism about the difficult prospects of revising the Constitution. But in a series of interviews with The Nation in which they detailed their plans, Ellison and Pocan displayed a passion for renewing and extending this essential democratic initiative at a time when Americans, they argue, are ready for constitutional clarity on voting rights.

Both congressmen have a track record on these issues: Ellison sponsored measures in the previous Congress addressing voter suppression, and Pocan led fights in the Wisconsin legislature against restrictive voter-ID laws and attempts to restrict Election Day registration. Those fights underpin their decision to seek a “Right to Vote” amendment, which they plan to introduce soon in the current Congress. “At a certain point, you realize there’s a need for something concrete, an absolute guarantee,” says Pocan. “We can’t leave it to chance anymore.”

Voting rights have too frequently been left to chance in the United States. Even as the franchise has been extended through constitutional and other federal initiatives, the administration of elections has been left to states with radically different standards. This makes no sense, considering the history of voting rights struggles. At the nation’s founding, the franchise was so rigidly restricted that historians estimate only about 6 percent of Americans—white male property owners of a certain age—could cast ballots. Over time, amendments have removed barriers to voting by African-American men (the Fifteenth Amendment, in 1870); women (the Nineteenth, in 1920); residents of the nation’s capital who seek to participate in presidential elections (the Twenty-third, in 1961); and 18- to 20-year-olds (the Twenty-sixth, in 1971). A substantial body of case law, as Harvard Law School professor Laurence Tribe notes, has been established on the side of voting rights, including the 1965 Voting Rights Act. But voting rights are now under assault in the courts and in Congress (and that includes the VRA itself, which is being challenged in a high-profile Supreme Court case that could gut its most vital provision; see Ari Berman in this issue. So, too, are many of the other advances that for a time had convinced most Americans that the fight for democracy had been won.

Even when the system melted down in 2000—when the Supreme Court intervened to halt the ballot recount in Florida, which could have determined a different winner in that year’s presidential race—most Democrats and Republicans shied away from talk of fundamental reform. But just as concerns about disenfranchisement because of the hours-long lines at polling places in the Sunshine State led to Obama’s creation of a nonpartisan commission after the 2012 race, so the dispute-plagued election of 2000 led to the creation of a blue-ribbon panel charged with fixing the system.

The National Commission on Federal Election Reform, chaired by Jimmy Carter and Gerald Ford, did come up with proposals, some of which were implemented in the Help America Vote Act of 2002. But before the 2004 election, Carter had to admit that “many of the act’s key provisions have not been implemented because of inadequate funding or political disputes.” He also acknowledged that his election-monitoring teams could not observe voting in Florida because “basic international requirements for a fair election are missing.” That was damning then, and it is even more so now, with each election cycle accompanied by new evidence of the vulnerability of our voting processes. As Foner puts it, there is continuing tension in America between the idea of “voting as a right and voting as something that only the right people should do.”

That tension was highlighted by Justice Antonin Scalia during the Bush v. Gore arguments in December 2000, when he went out of his way to observe that there is no federal constitutional guarantee of a right to vote for president. Scalia’s interventions, and the Court’s decision in that case, inspired American University law professor Jamie Raskin to argue in 2001 that “it is time for American progressives to engage in serious constitutional politics on behalf of the right to vote.” A constitutionally guaranteed right to vote, Raskin explained, would provide citizens and civil rights groups with standing to make demands on the system for consistent national rules, adequate funding of election operations, and even an end to the gerrymandering of legislative and congressional districts.

Several members of Congress, including the ranking Democrat on the House Judiciary Committee, John Conyers, and former Illinois Representative Jesse Jackson Jr., responded at the time by sponsoring a Right to Vote amendment that declared, “All citizens of the United States, who are eighteen years of age or older, shall have the right to vote in any public election held in the jurisdiction in which the citizen resides.” The proposed amendment established universal Election Day registration and required states to administer elections according to standards established and regularly updated by Congress.

It was a sound proposal, very much in sync with the fact that, as Raskin argued, “at least 135 nations—including our fellow North American countries, Canada and Mexico—explicitly guarantee citizens the right to vote and to be represented at all levels of government.” But it wasn’t in sync with the moment in Washington. Less than a year after the 2000 election, the 9/11 terrorist attacks sent President George W. Bush’s approval rating up to 90 percent. Republicans were not about to entertain discussions on whether a dysfunctional election system had played a role in making Bush president, and Democrats were not inclined to pick any fights. The amendment proposal, introduced in each new Congress through the 2000s, would eventually attract more than fifty co-sponsors. But it never gained real traction or more than cursory attention. The solution was there, but few seemed to notice it.

As the years passed, Democratic politicians and more than a few activists became very good at diagnosing, and sometimes even addressing, symptoms of democratic decay. But they never got to the heart of the matter. Now, Bonifaz argues, Americans are more than ready to accept that we lack a coherent and consistent set of standards for registering voters, casting ballots, counting ballots and (if necessary) recounting them.

No matter what the Supreme Court decides on the Voting Rights Act, it is vital to remember that the VRA covers only some states. Its protections extend to Alabama, for example, but they’ve never covered neighboring Tennessee. Some counties in North Carolina are included; others are not. Two townships in Michigan must get pre-clearance from the Justice Department before they can tinker with “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting,” but none of the state’s urban centers face such a requirement. And that’s just the beginning of the inconsistencies. Different states have different rules for voter registration and for casting and counting votes. With thousands of jurisdictions taking charge of separate aspects of the voting process, and with partisans looking for every opportunity to game the rules to the advantage of their party or candidates, little about a US election is as fixed or certain as most citizens imagine. It should come as no surprise, then, that every cycle brings a new flood of irregularities, and with them doubts about the validity of the process.

“None of this is consistent with ‘equality for all, democracy for all,’” says Bonifaz, who was honored with a MacArthur Foundation fellowship for his pioneering work with the National Voting Rights Institute. “It cannot be that our answer to Americans who face long lines at the polls is that you just have to accept these barriers because you don’t live in the right state. It cannot be our answer to Americans who face voter-ID restrictions and registration challenges that they are out of luck because of where they live.”

Bitter experience is leading those who cherish democracy to recognize that wrangling over piecemeal reforms will not solve the deeper problem. We have not made the great leap forward on this issue because we haven’t demanded it loudly and aggressively enough. How many election cycles are we going to go through before we accept the necessity of constitutional repair? How many fights about long lines at the polls? How many struggles to maintain early voting? How many disputes over same-day registration? How many battles will have to be fought merely to assure that the promise of the franchise is made real for every American? The sense that America must do something more is what makes Ellison and Pocan think it’s time to introduce a new Right to Vote amendment—one based on the proposal of a decade ago, but tweaked to respond to new concerns and a new sense of urgency.

* * *

A Right to Vote amendment won’t solve all our voting problems. (Bonifaz is a leading advocate for another amendment, one that would restore the ability of Congress to regulate corporate spending on political campaigns, which was gutted by the Supreme Court’s 2010 Citizens United ruling.) And it certainly won’t be easy to garner approval for such an amendment from the Republican-controlled House or from states where legislators are still busy enacting voter-ID laws. But the campaign will focus attention on the fundamental threat to voting rights—and if strong coalitions of civil rights, community and labor groups are formed to fight for the amendment, and if the volume is turned up to the right level, the battle can be waged from a position of strength. “A constitutional amendment becomes an organizing tool, a way to rally people around an idea. This is an idea that is well worth rallying around at a point when there is a full frontal assault on the right to vote,” Ellison tells me.

He’s not alone in that view. Organizations like FairVote have long supported a Right to Vote amendment. Now they’re ramping up their advocacy with a new “Promote Our Vote” campaign that encourages grassroots organizing to pass local, state and national resolutions “with the ultimate goal of enshrining an affirmative right to vote in the US Constitution.” Progressive Democrats of America, a group closely aligned with the Congressional Progressive Caucus, is working with Ellison and Pocan to make the amendment fight an important part of new organizing projects. And it won’t stop there. With civil rights groups now focusing on voter disenfranchisement, and unions like the Communications Workers of America committing resources to democracy fights, Ellison says he sees the amendment as part of a broader push for voting rights.

Just as conservatives have used the campaign for a balanced-budget amendment to focus attention on fiscal issues, and just as feminists capitalized on the movement to enact the Equal Rights Amendment to pass an array of initiatives beneficial to women and girls, so a Right to Vote amendment, even if it is never enacted, can highlight the need for—and strengthen the chance of passing—stronger and more consistent voting rights protections at the local, state and national levels.

“People have been through these fights on voter ID, long lines; we have seen what’s at stake. I think people are waking up to the fact that this thing we thought was so settled is not settled,” Ellison says. “It’s obvious we’ve got to play some offense here. As bold as they are to deny the right to vote, we have to be just as bold for the right to vote.”

Ari Berman writes that the Voting Rights Act is as necessary today as it was in 1965, when Alabama state troopers beat freedom marchers in Selma.